E.M. v. Nebraska Dept. of Health & Human Servs.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
E.M., appellant, v. Nebraska Department of
Health and Human Services
et al., appellees.
Kevin Vasquez Perez, appellant, v. Nebraska
Department of Health and Human
Services et al., appellees.
Walter Hernandez Marroquin, appellant, v.
Nebraska Department of Health and
Human Services et al., appellees.
___ N.W.2d ___
Filed June 5, 2020. Nos. S-18-1146 through S-18-1148.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Judgments. Whether an agency decision con-
forms to the law is by definition a question of law.
4. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law for which
an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
5. Administrative Law: Appeal and Error. An issue that has not been
presented in the petition for judicial review has not been properly pre-
served for consideration by the district court.
6. Appeal and Error. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
7. Statutes: Legislature: Presumptions: Judicial Construction. In deter-
mining the meaning of a statute, the applicable rule is that when the
Legislature enacts a law affecting an area which is already the subject
of other statutes, it is presumed that it did so with full knowledge of the
preexisting legislation and the decisions of the Nebraska Supreme Court
construing and applying that legislation.
8. Statutes. Statutory language is to be given its plain and ordinary
meaning.
9. Public Assistance: Words and Phrases. For the purposes of state or
local public benefits eligibility under Neb. Rev. Stat. § 4-108 (Reissue
2012), “lawfully present” means the alien classifications under 8 U.S.C.
§ 1621(a)(1), (2), and (3) (2012).
10. Public Assistance: Legislature. In order to affirmatively provide a state
public benefit to aliens not lawfully present in the United States, as
authorized by 8 U.S.C. § 1621(d) (2012), the Legislature must make a
positive or express statement extending eligibility by reference to immi-
gration status.
11. Constitutional Law: Federal Acts: States. Under the Supremacy
Clause of the U.S. Constitution, state law that conflicts with federal law
is invalid.
12. Statutes: Words and Phrases. It is not for the courts to supply missing
words or sentences to a statute to supply that which is not there.
13. Statutes: Appeal and Error. The rules of statutory interpretation require
an appellate court to give effect to the entire language of a statute, and
to reconcile different provisions of the statutes so they are consistent,
harmonious, and sensible.
14. ____: ____. An appellate court gives effect to all parts of a statute and
avoids rejecting as superfluous or meaningless any word, clause, or
sentence.
15. Administrative Law: Statutes. For purposes of construction, a rule
or regulation of an administrative agency is generally treated like a
statute.
16. ____: ____. Properly adopted and filed regulations have the effect of
statutory law.
17. Constitutional Law. Nebraska’s separation of powers clause prohibits
the three governmental branches from exercising the duties and preroga-
tives of another branch.
18. ___. The separation of powers clause prevents a branch from delegat-
ing its own duties or prerogatives except as the constitution directs or
permits.
Appeals from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
Allison Derr, Robert McEwen, and Sarah Helvey, of
Nebraska Appleseed Center for Law in the Public Interest, and
Mindy Rush-Chipman for appellants.
Douglas J. Peterson, Attorney General, and Ryan C. Gilbride
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
A federal statute 1 and its Nebraska counterpart 2 make non-
citizens, who are not “lawfully present,” 3 ineligible for state
public benefits unless the State “affirmatively provides” 4 for
eligibility. In these consolidated Administrative Procedure Act 5
appeals, we determine whether the language of the Young
Adult Bridge to Independence Act (YABI) 6 sufficiently made
several noncitizen applicants eligible for all public benefits
of the Bridge to Independence program (B2I). A state agency
ruled them ineligible, and on appeal, the district court affirmed.
On appeal to this court, we affirm. We also reject their consti-
tutional challenge to an agency regulation. 7
II. BACKGROUND
Before we summarize the proceedings, a brief introduction
to YABI and B2I will be helpful.
1
See 8 U.S.C. § 1621 (2012).
2
See Neb. Rev. Stat. §§ 4-108 to 4-113 (Reissue 2012 & Cum. Supp. 2018).
3
See §§ 1621(d) and 4-108.
4
§ 1621(d). See § 4-108.
5
See Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue
2014 & Cum. Supp. 2018).
6
See Neb. Rev. Stat. §§ 43-4501 to 43-4514 (Reissue 2016, Cum. Supp.
2018 & Supp. 2019).
7
See 395 Neb. Admin. Code, ch. 10, § 003.02 (2014).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
1. YABI and B2I
YABI was enacted in 2013 8 in response to the federal
Fostering Connections to Success and Increasing Adoptions
Act of 2008. 9 The purpose of YABI is to “support former state
wards in transitioning to adulthood, becoming self-sufficient,
and creating permanent relationships.” 10 YABI, in turn, created
B2I, Nebraska’s extended foster care program. 11 The program
is available to a young adult who is at least 19 years old,
who was adjudicated to be a juvenile under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016), who satisfies the education/
work requirement, who is a Nebraska resident, and who does
not meet the level of care for a nursing facility. 12 B2I offers
support services such as medical care, foster care maintenance
payments, and case management services until the former ward
turns 21 years old. 13 We now turn to the procedural history in
these consolidated appeals.
2. Agency Proceedings
E.M., Kevin Vasquez Perez, and Walter Hernandez Marroquin
(applicants) are Guatemalan citizens, who fled to Nebraska as
minors. Each was adjudicated by the juvenile court, pursuant to
§ 43-247(3)(a), and each was placed in foster care.
Before each applicant turned 19 years of age, he applied
to the Nebraska Department of Health and Human Services
(DHHS) for B2I. At the time of each application, the applicant
had already received special immigrant juvenile (SIJ) status
from the U.S. Citizenship and Immigration Services. DHHS
denied each of the applications, because each applicant failed
to meet the “citizenship/lawful presence requirements.”
8
2013 Neb. Laws, L.B. 216 (formerly known as Young Adult Voluntary
Services and Support Act).
9
Pub. L. No. 110-351, § 1, 122 Stat. 3949.
10
See § 43-4502.
11
See § 43-4501 et seq.
12
See § 43-4504.
13
See § 43-4505.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
Applicants requested fair hearings with DHHS. At the hear-
ing, the parties presented evidence and made arguments. In
DHHS’ order, it reasoned that because a person not “lawfully
present” in the United States shall not be provided public ben-
efits and applicants were neither U.S. citizens nor qualified
aliens, they were not eligible for B2I.
3. District Court Appeal
Applicants filed timely petitions for review to the district
court for Lancaster County. The parties stipulated to joinder
of applicants’ petitions for review. Applicants made two argu-
ments. First, they asserted that the omission of a citizenship
requirement and the inclusion of a case management service
that offers immigration assistance showed a clear intent to
extend public benefits to those not “lawfully present.” Second,
because DHHS promulgated a regulation that they claimed
added an eligibility requirement not provided in YABI, they
asserted that it violated the separation of powers clause of the
Nebraska Constitution. 14
The district court began its analysis by discussing the rel-
evant federal statutes. The court observed that under § 1621,
aliens are not eligible for state or local public benefits unless
they qualify under an enumerated alien status. 15 But, the court
recognized, under § 1621(d), the State can provide benefits to
those not otherwise eligible through the enactment of a state
law that “affirmatively provides for such eligibility.”
The court reasoned that because there was no affirmative
language in YABI to include those not “lawfully present” to
receive public benefits, applicants were not eligible for B2I.
It explained that applicants’ argument‑that the inclusion of
an immigration assistance service in the program provided
eligibility to those with SIJ status‑“require[d] an inference
not warranted by the statutory language or scheme.” It stated
that providing the immigration assistance service to those
14
See Neb. Const. art. II, § 1.
15
See 8 U.S.C. § 1641 (2012).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
ineligible for the program does not automatically convert an
individual into someone who is eligible. It remarked that the
generic language of the statute did not rise to the level of
affirm­ative language by the Legislature to provide eligibility
for those individuals.
The court analyzed applicants’ argument regarding the addi-
tional eligibility regulation. It stated:
In other words, that regulation explains that if a person
does not meet the citizenship/lawful presence require-
ment, the Department may nevertheless assist the young
adult in obtaining the necessary state court findings for
status adjustment application (after which that the young
adult may achieve an appropriate status under § 1621(a)
to receive public benefits).
It concluded that the regulation did not change the language or
meaning of the program. It affirmed DHHS’ denial of appli-
cants’ participation in B2I.
Each of the applicants filed a timely appeal, which, pursu-
ant to the parties’ stipulation, the Nebraska Court of Appeals
consolidated for briefing and disposition. Later, we granted
applicants’ petition to bypass the Court of Appeals. 16
III. ASSIGNMENTS OF ERROR
Applicants assign, restated, that the district court erred in
(1) determining that citizenship or immigration status is rel-
evant to eligibility for B2I; (2) affirming DHHS’ determination
that because each applicant was not a citizen or qualified alien,
he was not eligible; and (3) failing to strike down the eligibil-
ity regulation on the basis that it violated the separation of
powers clause of the Nebraska Constitution.
IV. STANDARD OF REVIEW
[1-3] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
16
See Neb. Ct. R. App. P. § 2-102(B) (rev. 2015).
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306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
court for errors appearing on the record. 17 When reviewing an
order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 18
Whether an agency decision conforms to the law is by defini-
tion a question of law. 19
[4] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. 20
V. ANALYSIS
The federal Immigration and Nationality Act (INA) 21 defines
many terms, including “alien” 22 and “national of the United
States.” 23 Federal statutes also use lengthy terms, such as “an
alien who is not lawfully present,” 24 to describe the status of
particular individuals. Following the lead of the California
Supreme Court and purely for the sake of brevity, we refer to
such individuals as “unlawful aliens.” 25
The overarching question that we must answer is whether
applicants were eligible for B2I.
17
McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56, 926
N.W.2d 660 (2019).
18
Id.
19
Id.
20
In re Application No. OP-0003, 303 Neb. 872, 923 N.W.2d 653 (2019).
21
See 8 U.S.C. § 1101 et seq. (2012).
22
See § 1101(a)(3) (“term ‘alien’ means any person not a citizen or national
of the United States”).
23
See § 1101(a)(22) (“term ‘national of the United States’ means (A) a
citizen of the United States, or (B) a person who, though not a citizen of
the United States, owes permanent allegiance to the United States”).
24
See 8 U.S.C. §§ 1621(d) and 1623 (2012).
25
See Martinez v. Regents of University of Cal., 50 Cal. 4th 1277, 241 P.3d
855, 117 Cal. Rptr. 3d 359 (2010).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
1. Arguments Not Considered
On appeal to this court, applicants make several argu-
ments—two of which DHHS challenges as being outside the
scope of applicants’ petitions for review filed in the district
court. DHHS first challenges the argument that because § 1621
does not apply to unlawful aliens in foster care services under
the juvenile court jurisdiction, it does not apply to unlaw-
ful aliens in extended foster care. DHHS also challenges the
argument that B2I is an in-kind service, necessary for life and
safety, which, applicants argue, is an exempt public benefit.
[5] As DHHS correctly notes, an Administrative Procedure
Act statute dictates that a petition for review must set forth
the “petitioner’s reasons for believing that relief should be
granted.” 26 Thus, we have said that an issue that has not been
presented in the petition for judicial review has not been prop-
erly preserved for consideration by the district court. 27
We agree that neither argument was raised in the amended
petitions for review filed in the district court. Each broadly
stated that “[DHHS has] incorrectly and unlawfully deter-
mined that [applicants are] not eligible for extended foster
care benefits . . . .” We agree with DHHS that this broad
assertion did not properly preserve the challenged arguments
for review.
[6] This, in turn, dictates that we should not consider either
argument. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court. 28 Therefore,
we will not address them.
2. Federal and State
Statutory Limitations
Before we can determine if applicants are eligible for B2I,
we must determine whether the federal and state statutory
26
§ 84-917(2)(b)(vi).
27
Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).
28
Thorson v. Nebraska Dept. of Health & Human Servs., 274 Neb. 322, 740
N.W.2d 27 (2007).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
limitations on providing state public benefits to noncitizens
apply to YABI. And before undertaking that analysis, we first
recall the relevant federal and state statutes.
(a) PRWORA
In 1996, Congress passed the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA). 29
PRWORA prohibited an alien who is not a “qualified alien (as
defined in [8 U.S.C. § 1641])” from receiving any “Federal
public benefit.” 30 It did so “[n]otwithstanding any other provi-
sion of law” 31 but with certain exceptions. 32
Pertinent to the appeal before us, PRWORA also declared
certain individuals to be ineligible for any state or local pub-
lic benefit. 33 It provided that an alien who is not (1) a quali-
fied alien (as defined by § 1641), (2) a nonimmigrant under
the INA, or (3) an alien paroled into the United States under
the INA for less than 1 year, is not eligible for any state or
local public benefit. 34 Like the prohibition on federal pub-
lic benefits, the prohibition on state public benefits applies
“[n]otwithstanding any other provision of law” 35 but with
specified exceptions. 36
Applicants concede that they are “not considered qualified
aliens for the purposes of PRWORA.” 37 They also concede that
they are “not specifically listed under PRWORA as qualified to
receive those benefits meeting the definition of state or local
public benefits.” 38
29
Pub. L. No. 104-193, § 1, 110 Stat. 2105.
30
See 8 U.S.C. § 1611(a) (2012).
31
Id.
32
See § 1611(b).
33
See § 1621(a).
34
Id.
35
Id.
36
See § 1621(b) and (d).
37
Brief for appellants at 16.
38
Id. at 16-17.
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306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
At the heart of the case before us is PRWORA’s provi-
sion creating an exception allowing states to extend state and
local public benefits to unlawful aliens. We quote it in full, as
follows:
A State may provide that an alien who is not law-
fully present in the United States is eligible for any
State or local public benefit for which such alien would
otherwise be ineligible under subsection (a) of this sec-
tion only through the enactment of a State law after
August 22, 1996, which affirmatively provides for such
eligibility. 39
In this exception, the key terms are “alien who is not lawfully
present in the United States” and “affirmatively provides.” 40
(b) L.B. 403
In 2009, the Nebraska Legislature enacted the state law
equivalent of PRWORA as part of L.B. 403. 41 It provided
that “[n]otwithstanding any other provisions of law, . . . no
state agency or political subdivision of the State of Nebraska
shall provide public benefits to a person not lawfully present
in the United States.” 42 In order to verify lawful presence,
an applicant for public benefits must attest that he or she is
a U.S. citizen or that he or she is a qualified alien and law-
fully present. 43
(c) Interpreting YABI
[7] We must interpret YABI consistently with PRWORA
and its Nebraska counterpart. In determining the meaning of a
statute, the applicable rule is that when the Legislature enacts
a law affecting an area which is already the subject of other
statutes, it is presumed that it did so with full knowledge of
39
§ 1621(d).
40
See id.
41
2009 Neb. Laws, L.B. 403, §§ 1 to 6 (codified at §§ 4-108 to 4-113).
42
§ 4-108(1).
43
§ 4-111(1).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
the preexisting legislation and the decisions of the Nebraska
Supreme Court construing and applying that legislation. 44 The
Legislature enacted YABI in 2016, 7 years after it adopted
L.B. 403 and 20 years after Congress enacted PRWORA. No
subsequent legislation has been enacted to limit or broaden
PRWORA or its Nebraska counterpart. Applicants concede, as
they must, that YABI “should be read in conjunction with the
PRWORA and L.B. 403.” 45
[8] We do so using our well-settled principle: Statutory
language is to be given its plain and ordinary meaning. 46 Both
§§ 1621 and 4-108 proclaim that they apply “[n]otwithstanding
any other provision[] of law.” When the Legislature enacted
YABI, it did so with full knowledge that §§ 1621 and 4-108
limited public benefits to citizens and “lawfully present” aliens
and required it to “affirmatively provide[]” for eligibility in
order to extend public benefits to unlawful aliens. We will
examine each of these requirements in more detail.
(d) “Lawfully Present”
Because YABI is subject to §§ 1621 and 4-108, we must
determine if applicants were “lawfully present.” They were not.
The Nebraska act does not define “lawfully present.” But
one section requires an applicant to verify lawful presence by
attesting that he or she is either (1) a U.S. citizen or (2) a quali-
fied alien and is lawfully present. 47 This requirement makes it
clear that “lawfully present” refers to an individual’s citizen-
ship or alien immigration status. Because the federal govern-
ment has broad, undoubted power over immigration and the
status of aliens, 48 we turn to PRWORA for guidance.
44
McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120
(2019).
45
Brief for appellants at 18.
46
In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).
47
See § 4-111(1).
48
See Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 183 L. Ed. 2d
351 (2012).
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Nebraska Supreme Court Advance Sheets
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E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
Although the term is not defined in PRWORA, it appears
only in § 1621, which we have already analyzed, and in
§ 1623. Similar to § 1621, § 1623 states that “an alien who is
not lawfully present in the United States shall not be eligible
on the basis of residence within a State . . . for any postsecond-
ary education benefit . . . .”
In Arizona ex rel. Brnovich v. Maricopa CCCDB, 49 the
Arizona Supreme Court interpreted § 1623’s “lawfully pres-
ent” requirement as the eligibility required for § 1621(a). It
reasoned that from the context of § 1621(a) and § 1621(d)
that “Congress directly equated aliens ‘not lawfully present’
with those otherwise ‘ineligible under subsection (a).’” 50 It
explained that Congress provided for only certain categories
of aliens to be eligible for state and local public benefits.
Therefore, aliens who do not fall within one of those catego-
ries are not “lawfully present” for the purpose of State or local
public benefits.
[9] We agree with the reasoning of the Arizona Supreme
Court. The context of § 1621 shows clear intent by Congress
to equate those ineligible under § 1621(a) with aliens not
“lawfully present.” With certain exceptions not applicable
here, only the three alien statuses enumerated in § 1621(a)
may receive public benefits. For the purposes of state or
local public benefits eligibility under § 4-108, “lawfully pres-
ent” means the alien classifications under § 1621(a)(1), (2),
and (3).
Applicants have not presented evidence that they qualify as
“lawfully present” aliens under § 1621(a). Applicants are not
qualified aliens under § 1641, nonimmigrants under the INA,
or aliens who were paroled into the United States under the
INA for less than 1 year. Thus, for purposes of § 4-108, appli-
cants were “not lawfully present in the United States.”
49
See Arizona ex rel. Brnovich v. Maricopa CCCDB, 243 Ariz. 539, 416
P.3d 803 (2018).
50
Id. at 541, 416 P.3d at 805.
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E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
(e) “Affirmatively Provides”
Where an alien is not “lawfully present,” state public ben-
efits can be provided only through the enactment of a state law
which “affirmatively provides” for eligibility. 51 Because we
have not determined what those words require, we first exam-
ine decisions from other states and then settle the meaning of
the phrase.
(i) Decisions From Other States
In Kaider v. Hamos, 52 an Illinois court determined the plain
meaning of the phrase by using a dictionary definition. There,
both parties did likewise. One side contended that “affirm­
atively” required specific or express reference to unlawful
aliens; the other urged that it only required an unambiguous
and positive expression of legislative intent to opt out of
§ 1621(a). The Illinois court reasoned that the first argument
went too far, in that Congress did not require express or spe-
cific reference to a specific term. The “better understanding,”
the court said, was that “Congress wanted to prevent the
passive or inadvertent override of [§] 1621(a).” 53 The court
determined that “[§] 1621(d) is satisfied by any state law that
conveys a positive expression of legislative intent to opt out
of [§] 1621(a) by extending state or local benefits to unlawful
aliens.” 54 Then, applying this understanding to the Illinois pro-
grams’ statutory language, which provided services to “‘non-
citizens’” or “‘noncitizens’ who were not otherwise eligible,”
the court reasoned that the term “noncitizen” left unmodified
was broad enough to encompass unlawful aliens. 55 It concluded
that the programs positively conveyed an intent to opt out of
§ 1621(a) and extend certain benefits to unlawful aliens.
51
§ 1621(d).
52
Kaider v. Hamos, 2012 IL App (1st) 111109, 975 N.E.2d 667, 363 Ill.
Dec. 641 (2012).
53
Id. at ¶ 14, 975 N.E.2d at 673, 363 Ill. Dec. at 647.
54
Id. at ¶ 17, 975 N.E.2d at 674, 363 Ill. Dec. at 648.
55
Id. at ¶ 23, 975 N.E.2d at 676, 363 Ill. Dec. at 650.
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E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
In Martinez v. Regents of University of Cal., 56 the California
Supreme Court analyzed whether the California Legislature
affirmatively provided for unlawful aliens to be exempt from
paying nonresident tuition at California state colleges and uni-
versities. There, the California statute “expressly refer[red] to
‘the case of a person without lawful immigration status.’” 57
After the court determined that the statute did not violate
§ 1623, it turned to § 1621. It rejected a lower court’s reason-
ing that to “affirmatively provide[]” required the state law
to specify that “illegal aliens” were eligible and to expressly
reference § 1621. 58 The court then concluded that “‘in order to
comply, the state statute must expressly state that it applies to
undocumented aliens, rather than conferring a benefit generally
without specifying that its beneficiaries may include undocu-
mented aliens.’” 59 Thus, the statute was sufficient to “affirma-
tively provide[]” for unlawful aliens.
(ii) Statutory Interpretation
We agree with the analysis of the California and Illinois
courts. Both courts rejected the notion that to “affirmatively
provide[]” means to include one universal alien status or to
expressly reference § 1621. We further agree that in order to
“affirmatively provide[],” there must be more than confer-
ring a general benefit that would passively include unlaw-
ful aliens.
[10] The plain language of § 1621(d) required the Legislature
to “affirmatively provide[] for such eligibility.” The federal
statute does not require the Legislature to “affirmatively pro-
vide[]” for specific services or services that only unlawful
aliens can use. It requires the Legislature to state who is eli-
gible. In order to affirmatively provide a state public benefit
56
See Martinez, supra note 25.
57
Id. at 1295, 241 P.3d at 866, 117 Cal. Rptr. 3d at 373.
58
See id.
59
Id. at 1296, 241 P.3d at 868, 117 Cal. Rptr. 3d at 374.
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E.M. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 1
to aliens not lawfully present in the United States, as autho-
rized by § 1621(d), the Legislature must make a positive or
express statement extending eligibility by reference to immi-
gration status.
3. Application to YABI
Having settled the meaning of § 1621(d) and its Nebraska
equivalent, we turn first to applicants’ two arguments regarding
the “affirmatively provides” requirement. Then, we address the
meaning of § 43-4505(3)(h).
Applicants argue that for two reasons, YABI “affirmatively
provides” for unlawful aliens. Neither is persuasive.
First, they contend that the omission of a lawful pres-
ence requirement evidenced the Legislature’s intent to include
unlawful aliens. They cite our familiar proposition that the
intent of the Legislature is expressed by omission as well as by
inclusion. 60 And, they argue, the Legislature did not “include
any deference to the limitations within PRWORA or L.B. 403
within its eligibility requirements.” 61
[11] But as we have already explained, PRWORA and L.B.
403 apply to YABI. Section 1621(d) dictates that to provide
eligibility for a state public benefit to an unlawful alien, the
state must “affirmatively provide[]” for such eligibility. Section
1621(a) denies eligibility “[n]otwithstanding any other provi-
sion of law,” subject to the exception of § 1621(d). Here, the
proposition on which applicants rely conflicts with the federal
statute. Under the Supremacy Clause of the U.S. Constitution,
state law that conflicts with federal law is invalid. 62 The fed-
eral statute requires a positive or express statement to include
unlawful aliens for eligibility. An omission cannot qualify as a
positive or express statement.
60
See Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
61
Brief for appellants at 23.
62
Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169
(2014).
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Second, applicants argue that the inclusion of a case man-
agement service that assists participants in “[o]btain[ing] the
necessary state court findings and then apply[ing] for [SIJ]
status . . . or apply[ing] for other immigration relief that
the young adult may be eligible for,” 63 evidenced legisla-
tive intent to provide for unlawful aliens. They contend that
because aliens with and without SIJ status would not qualify
as “lawfully present,” that it “‘expressly’ and ‘unambiguously’
confers a benefit to [unlawful] aliens within the meaning of
PRWORA.” 64 We disagree.
[12] This provision describes a service, not an eligible
recipient. It is not for the courts to supply missing words
or sentences to a statute to supply that which is not there. 65
There is no positive or express statement using words which
describe individuals. We cannot supply what the Legislature
omitted. In Kaider, the statute provided for “‘noncitizens,’” 66
and in Martinez, the statute provided for “‘a person without
lawful immigration status.’” 67 Nothing like that appears in
§ 43-4505(3)(h) or anywhere else in YABI.
Moreover, the Legislature has demonstrated that it knows
how to affirmatively provide for unlawful aliens to receive
public benefits. In § 4-111(3), the Legislature affirmatively pro-
vided for a classification of persons, too lengthy to quote here,
to grant eligibility for a professional or commercial license.
That statute provides an express statement of who is eligible
to receive the benefit. And in that instance, the Legislature
recited that it enacted subsection (3) “pursuant to the authority
provided in [§] 1621(d).” 68 Section 4-111(c) certainly qualified
63
§ 43-4505(3)(h).
64
Reply brief for appellants at 11.
65
State v. Jedlicka, ante p. 52, 938 N.W.2d 854 (2020).
66
Kaider, supra note 52, 2012 IL App (1st) 111109 at ¶ 23, 975 N.E.2d at
676, 363 Ill. Dec. at 650.
67
Martinez, supra note 25, 50 Cal. 4th at 1296, 241 P.3d at 866, 117 Cal.
Rptr. at 373.
68
See § 4-111(3)(e).
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as an affirmative provision. Section 43-4505(3)(h) simply does
not do so.
As part of this argument, applicants also contend that if
unlawful aliens are not eligible for B2I, then § 43-4505(3)(h)
would be “useless and unnecessary.” 69 We disagree.
[13,14] Of course, we recognize that some effect must be
given to § 43-4505(3)(h). The rules of statutory interpretation
require an appellate court to give effect to the entire language
of a statute, and to reconcile different provisions of the statutes
so they are consistent, harmonious, and sensible. 70 An appellate
court gives effect to all parts of a statute and avoids rejecting as
superfluous or meaningless any word, clause, or sentence. 71 But
we can do so without judicially rewriting the statute to include
a blanket eligibility provision that is simply not there.
[15,16] In order to reconcile § 43-4505(3)(h), it must be
read in light of relevant state and federal statutes and regula-
tions. Section 1621 required an affirmative provision to make
unlawful aliens eligible for YABI, but the Legislature did not.
Treating unlawful aliens as eligible for all of YABI would
conflict with federal law. But failing to treat § 43-4505(3)(h)
as an exception to YABI would also conflict with federal law.
The INA defines the term “special immigrant.” 72 A federal
regulation allows for an alien to be eligible for SIJ status until
he or she is 21 years old. 73 Section 43-4514(3) (Cum. Supp.
2014) granted DHHS authority to adopt and promulgate rules
and regulations as needed to carry out YABI. For purposes of
construction, a rule or regulation of an administrative agency
is generally treated like a statute. 74 Properly adopted and filed
69
Reply brief for appellants at 15.
70
Hoppens v. Nebraska Dept. of Motor Vehicles, 288 Neb. 857, 852 N.W.2d
331 (2014).
71
Id.
72
See 8 U.S.C. § 1101(27)(J).
73
See 8 C.F.R. § 204.11 (2020).
74
McManus Enters., supra note 17.
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regulations have the effect of statutory law. 75 One of DHHS’
regulations strives to carry out the Legislature’s intent by
assisting an otherwise ineligible young adult in “obtaining the
necessary state court findings and then applying for [SIJ] status
or applying for other immigration relief that the young adult
may be eligible for.” 76
Because the federal regulation provides for SIJ eligibility
until the alien is 21 years old, the most sensible reading of
§ 43-4505(3)(h) creates an exception where DHHS may offer
immigration assistance to unlawful aliens until they are 21
years old. That reading was adopted by DHHS and promul-
gated in its regulations. By carving out this limited exception
for unlawful aliens to receive immigration assistance, it most
effectively gives effect to every clause of the statute and does
so without creating a conflict with federal law.
4. Challenge to Regulation
Applicants argue that DHHS violated Neb. Const. art. II,
§ 1, by “improperly adding a B2I eligibility requirement.” 77
Specifically, they attack § 003.02, which states that “[i]n
order to participate in [B2I], a young adult must be a citizen
of the United States or an alien lawfully present in the United
States . . . .”
[17,18] We agree that Nebraska’s separation of powers
clause prohibits the three governmental branches from exer-
cising the duties and prerogatives of another branch. 78 The
separation of powers clause prevents a branch from delegating
its own duties or prerogatives except as the constitution directs
or permits. 79
But we have already recognized that applicants’ interpreta-
tion of YABI would conflict with federal law, in violation of
75
Id.
76
395 Neb. Admin. Code, ch. 10, § 003.02A (2014).
77
Brief for appellants at 26.
78
In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
79
Id.
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the Supremacy Clause of the U.S. Constitution. As we have
determined, in order to be eligible for B2I, an individual must
be a citizen or “lawfully present.” Section 003.02 is simply
the codification of the PRWORA limitation of federal law that
we have discussed. Under the unique circumstances of the
case before us, DHHS did not violate the separation of powers
clause when promulgating § 003.02.
VI. CONCLUSION
We conclude that the district court did not err in determin-
ing that applicants were not eligible for B2I. Because appli-
cants were not “lawfully present” and the Legislature did not
“affirmatively provide[]” for unlawful aliens to be eligible
under YABI, applicants were ineligible for B2I. We affirm the
judgment of the district court.
Affirmed.